Law Enforcement (AFP Professional Standards and Related Measures) Bill 2006

Bills Digest no. 162 2005–06

Law Enforcement (AFP Professional Standards and Related
Measures) Bill 2006

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The Law Enforcement (AFP Professional Standards and Related
Measures) Bill 2006 repeals the Complaints (Australian Federal
Police) Act 1981 and inserts a new part into the
Australian Federal Police Act 1979 to update the
complaints and professional standards regime within the Australian
Federal Police.

This Bill forms part of a package of Bills. The Law Enforcement
Integrity Commissioner Bill 2006 would establish the Australian
Commission for Law Enforcement Integrity (ACLEI). The Commissioner
will be responsible for detecting and investigating allegations of
corruption against the Australian Crime Commission and the
Australian Federal Police, and will have the powers of a Royal
Commission. The Bills Digest is available here.

The Law Enforcement Integrity Commissioner (Consequential
Amendments) Bill 2006 aims to amend a range of acts consequential
to the establishment of ACLEI. It applies the full range of police
special investigative powers to the Commissioner. The Bills Digest
is available here.

On 30 March 2006, the Senate referred the above Bills to the
Senate Legal and Constitutional Legislation Committee for inquiry
and report by 11 May 2006. The final report is available
here.

It was announced on 20 June 2006 that the Coalition party room
had cleared amendments to the package of Bills to be introduced to
Parliament.

The modern history of reviews of the complaints regime of the
Australian Federal Police goes back over thirty years with the
Australia Law Reform Commission s (ALRC) first report, Complaints
Against Police, in 1975. That report was followed by
another ALRC report in 1978, also calledComplaints
Against Police.The work by the ALRC eventually resulted
in theComplaints (Australian Federal Police) Act
1981. According to the Minister s second reading speech:

the Bill recognises the need identified by the
[ALRC] for certain elements of independence in the receipt,
handling, investigation and determination of complaints against
police. The first of these elements is use of the Ombudsman as
'neutral territory' for the receipt of complaints, as the
investigator of last resort and as public guardian to ensure that
adequate and proper steps are taken in relation to complaints. The
second element is establishment by statute of a special unit of the
Police Force titled the 'Internal Investigation Division' with a
specialised and independent function of investigating complaints by
members of the public against police. Investigation of complaints
against police will normally be carried out by this unit. I mention
that a unit of this nature has already been established by the
Commissioner by administrative action. The third element of
independence will be the establishment of a police disciplinary
tribunal whose president will be a judge to hear charges against
police officers of breaches of the disciplinary code. However, as
recommended by the Commission, criminal charges against police will
continue to be dealt with in the ordinary criminal
courts.(1)

In 1995, the ALRC was again tasked with inquiring into the
Complaints (Australian Federal Police) Act 1981 and the
complaints and disciplinary system of the Australian Federal
Police. The ALRC report, Integrity: But Not By Trust Alone (ALRC 82) was tabled
in Federal Parliament in December 1996. The recommendations in ALRC
82 have not been implemented. In this review, the ALRC observed
that AFP processes were outdated and unsatisfactory .(2)
The ALRC proposed the establishment of a National Integrity and
Investigations Commission as a response to the concerns it
identified in its report. The Commission would have jurisdiction
over the AFP and NCA, dealing with complaints and an office dealing
with corruption.

In 1997, at the request of the
Attorney-General, a report by a senior lawyer was conducted into
allegations made about the AFP, by a former officer Alan Taciak.
Whilst the report was not publicly released, the Attorney-General
provided details in a
press release on 8 May 1997. The report recommended that the
Commonwealth Ombudsman, with enhanced powers, should retain the
role of providing external scrutiny of complaints or allegations of
police misconduct or corruption.

In 2001, the Senate Legal and Constitutional Reference Committee
undertook an inquiry into management arrangements and adequacy of
funding of the AFP and NCA. The Committee recommended that:

the procedures for dealing with complaints and
allegations be examined with a view to their being simplified and
made more transparent, and to ensuring that employees are not
disadvantaged by the use of administrative instead of disciplinary
processes.(3)

This recommendation led to the appointment of a retired judge,
the Hon. Justice William Fisher AO QC, to undertake A Review of
Professional Standards in the Australian Police Force (the
Fisher review).

Justice Fisher's recommendations centred around the
establishment of a 'managerial model' for professional standards
rather than a legalistic and formal approach. The Fisher Review
observed:

In complaints and discipline matters police
services have traditionally tended to focus too much on the aspect
of reactive punishment.(4)

The Government s response to the review was released in March
2006 with the introduction of the present Bill. The relevant media
release stated that the legislation implements the bulk of the
Fisher recommendations (later clarified by the Senate inquiry as 15
out of 23(5)):

In line with best practice in modern management,
changes to the AFP s complaints and discipline regime will involve
non-punitive managerial measures to improve performance wherever
this can be effective. In serious cases the Commissioner of Police
will still have the power to dismiss officers whose performance is
unsatisfactory.

These changes will ensure a quick, firm and
effective response to any unacceptable police conduct. This will
provide the best outcomes for AFP management and staff and, most
importantly, for the public.

The present systems were put in place around 25
years ago and the AFP has come a long way since then. It needs a
system that doesn t waste resources on complex procedures and red
tape.(6)

Senator Patricia Crossin, Deputy Chair of the Senate Legal and
Constitutional Legislation Committee and Senators Linda Kirk and
Joseph Ludwig set out the ALP position on this Bill via Additional
Comments in the final report as follows:

First, the Labor Senators note that the Law
Enforcement (AFP Professional Standards and Related Measures) Bill
2006 implements the majority in whole or in part of the 2003 Fisher
Report's recommendations with respect to AFP professional
standards. In relation to recommendation 23, Labor notes and
supports the proposed Government amendment to clarify the law
around the AFP Commissioner's 'assignment of duties' power in
section 40H of the Australian Federal Police Act 1979.

Second, the new complaints and professional
standards system is supported by the Labor Senators and is long
overdue, however we believe that the committee's comments and
recommendations do not go far enough to protect of the rights of
'AFP appointees' (particularly since the Bill gives a lot of
discretion to AFP management to make certain decisions to correct
behaviour of the AFP appointee involved). We do recognise the
undertaking by AFP Commissioner Mick Keelty to address the use of
this managerial discretion in the AFP's internal guidelines on the
professional standards framework, however, Labor believes more
needs to be done.

Labor believes in instances where punitive or
pecuniary effects are a consequence of disciplinary action some
method of review would be appropriate to avoid unjust or
disproportionate outcomes.(7)

The Explanatory Memorandum states there will be no direct
financial implications for the Government.(8) However,
the Commonwealth Ombudsman gave evidence to the 2006 Senate Legal
and Constitutional Legislation Committee inquiry that its resources
and funding requirement need to be reviewed in light of its
additional responsibilities under the Bill.(9)

Schedule 1 Amendments to Australian Federal Police Act
1979

The main amendments are introduced by item 28
which inserts a new Part V into the Act headed
Professional standards and AFP conduct and practices
issues. New Part V has nine divisions. New section
40RB provides a simplified outline of Part V.

Items 2 to 25 amend existing
section 4 of the AFP Act by inserting a number of new definitions
relating to new Part V.

Item 2 expands the current definition of
AFP appointee (contained in the Complaints (Australian
Federal Police) Act 1981) to cover all persons engaged by the
AFP Commissioner, including consultants, independent contractors
and persons engaged overseas as employees.

Items 14 and 16 insert a
definition of corrupt conduct by reference to the
definition of engages in corrupt conduct in section 6 of the
Law Enforcement Integrity Commissioner Act 2006 if passed
(LEIC Act). This provision relates to staff members of law
enforcement agencies which includes the AFP. A staff member engages
in corrupt conduct if the staff member, while a staff member of the
agency, engages in:

conduct that involves, or that is engaged in for the purpose
of, the staff member abusing his or her office as a staff member of
the agency, or

conduct that perverts, or that is engaged in for the purpose of
perverting, the course of justice, or

conduct that, having regard to the duties and powers of the
staff member as a staff member of the agency, involves, or is
engaged in for the purpose of, corruption of any other kind.

The term engage in conduct is separately defined in section 5 of
the LEIC Act as meaning doing an act or omitting to do an act.

Item 15 inserts a definition of corruption
issue by reference to the definition in section 7 of the LEIC
Act. A corruption issue as an issue of whether a person who is, or
has been, a staff member of a law enforcement agency engages in
corrupt conduct in the past, present or future. The definition
specifies that an allegation may raise a corruption issue even if
the identity of the person is unknown, is uncertain or is not
disclosed in the allegation or information.

The AFP Commissioner may determine the professional standards to
be complied with by AFP appointees (item 6 and
clause 40RC).

A unit must be constituted within the AFP to undertake
investigations of AFP conduct issues and corruption issues that
relate to conduct engaged in by AFP appointees (clause
40RD). The head of the unit is responsible directly to the
AFP Commissioner (clause 40RE).

'AFP conduct issue' is defined broadly and relates to whether an
AFP appointee has engaged in conduct that breaches the AFP
professional standards or is corrupt conduct (clause
40RH and item 3). Conduct that was
engaged in before the commencement of this section and conduct for
which the statute of limitations has passed are included in the
definition.

'AFP practices issue' is also defined broadly and concerns the
practices and procedures of the AFP, both within and outside of
Australia (item 5 and clause
40RI).

Clause 40RK sets out four categories of conduct
that define what behaviour is able to be the subject of a complaint
in relation to a professional standards issue for the purposes of
the Bill.

Category 1 conduct (least serious) inappropriate
conduct that relates to minor management matters or customer
service matters or conduct that reveals a need for improvement by
the AFP appointee concerned (item 7 and
clause 40RN).

Category 3 conduct conduct that is serious misconduct
by an AFP appointee or that raises the question whether termination
action should be taken, or involves a breach of the criminal law or
serious neglect of duty by an AFP appointee, and that is not
conduct that raises a corruption issue (item 9 and
clause 40RP).

The highest category of conduct is conduct giving rise to a
corruption issue (item 15 and
clause 40RK).

The AFP Commissioner and the Commonwealth Ombudsman may jointly
determine by legislative instrument the kind of conduct that falls
within category 1, 2 or 3. If a conduct issue potentially falls
into a number of different categories, it will be taken to fall
within the highest of those categories (clause
40RM).

Any person may give information that raises an AFP conduct or
practices issue either to the AFP Commissioner or any AFP
appointee, in writing or orally (clause 40SA). The
information can be given anonymously (paragraph
40SA(2)(b)). The Bill also provides mechanisms for persons
in custody to give information (clause 40SB).

A complainant is defined as a person who either
expressly or impliedly indicates that he or she wishes to be kept
informed of the action taken in relation to an AFP conduct or
practices issue (item 13 and sub-clause
40SA(3)).

Information given under clause 40SA must be recorded and dealt
with in accordance with subclause 40TA(1). There
is an exception for a category 1 conduct issue or an AFP practice
issue (subclause 40SC(2)).

The detailed process by which questions and complaints lodged
under Division 2 must be dealt with will be set out by the
Commission in a set of orders under existing section 38 of the Act.
The question of whether such section 38 orders are purely
administrative or may be legislative in character, and as such
required to be in the form of a disallowable instrument, was
considered by the Senate Standing Committee for the Scrutiny of
Bills in relation to the Australian Federal Police Legislation
Amendment Bill 1999.(10)

The Commissioner can take training and development
action (clause 40TC), remedial
action (clause40TD) and
termination action (clause40TE) or take no further action at his or her
discretion (clause40TF).

New Subdivision D, clauses 40TL to 40TW, deal
with special processes for category 3 conduct and corruption
issues.

This division provides for the administering Minister to direct
that an inquiry be held about any matter relating to the AFP. Such
inquiries may be additional to, or instead of, a Division 3
investigation. The Minister has wide discretion about how they may
be conducted (clause 40UA). The reports do not
have to be publicly released (clause 40UD).

If the Minister arranges for an inquiry, he or she must inform
the Commonwealth Ombudsman, ACLEI and other persons or bodies that
the Minister deems appropriate about the details of the inquiry
(clause 40UB).

conduct the inquiry and may obtain information in a manner that
he or she thinks fit (subject to the Division) (clauses
40VB and 40VC)

enter and search AFP premises for the purposes of an
investigation or inquiry (clause 40VF), and

direct an AFP appointee to provide information, produce a
document or thing, answer a question or do anything else reasonably
necessary for the purposes of the investigation or inquiry
(clause 40VE).

The AFP appointee is not excused from complying with the
direction on any ground. The production of information or evidence
obtained from the AFP appointee is not admissible in evidence
against the AFP appointee in civil or criminal proceedings (with
some exceptions). Similar powers are given to an investigator
conducting a ministerially directed inquiry (clause
40VG).

A number of offences regarding the non-compliance of AFP
appointees with an investigation are listed at clause
40VH. The offences attract a maximum penalty of six months
imprisonment.

The AFP Commissioner must keep adequate records for the purposes
of new Part V. There is an exception for category 1 conduct issues
that are resolved without being recorded (clause
40WA). Both ACLEI and the Commonwealth Ombudsman are
entitled to have access to the records for the purposes of
performing their functions.

The Bill revises the role for the Commonwealth Ombudsman in
relation to professional standards. It gives the Ombudsman:

the ability to jointly determine, with the AFP Commissioner,
the kinds of issues that belong to various categories of
conduct

access to the records that are kept in relation to AFP conduct
and practices issues, and

the role of conducting annual and ad hoc reviews of the
operation of the new professional standards system.

The Commonwealth Ombudsman's review role is to review the
administration of Part V (clause 40XA). At least
every 12 months the Ombudsman must inspect the records of AFP
conduct and practices issues that have been, or are being dealt
with, under Divisions 3 and 4. The Ombudsman may also conduct ad
hoc inspections (clause 40XB).

The Commonwealth Ombudsman must prepare an annual report for the
Parliament that includes information as to the adequacy of the
administration of matters under Divisions 3 and 4 (clause
40XD).

to cause, or threaten to cause, detriment to another person on
the ground that the person, or another person, gave information for
the purposes of Part V ( Victimisation , clause
40YA, maximum 6 months imprisonment)

for an AFP appointee to refuse to give the necessary personal
details without reasonable excuse, or to give false details, where
a person has requested those details for the purpose of making a
complaint or raising a conduct issue, and where the AFP appointee
was informed of the reason for requesting the details
(clause 40YC, 5 penalty units).

Item 1 repeals the above Act. The new
complaints and disciplinary regime will now be located within the
Australian Federal Police Act 1979 (see Schedule 1).

Item 2 is a transitional provision to provide
that the 1981 Act continues to apply to complaints made, or
referred by the Commonwealth Ombudsman, under that Act before the
commencement of this Schedule.

The Anti-Terrorism Act (No. 2) 2005 introduced new
Division 104 and 105 into the Criminal Code dealing with the
introduction of control orders and preventative detention in
relation to the prevention of terrorist acts. Note that the
amendments to the Criminal Code in items 36 to 45
would allow a person subject to a control order or preventative
detention order under section 105 to have access to the Ombudsman
for the purpose of making a complaint or providing information
under clause 40SA.

Note in relation to the Ombudsman Act 1976,
item 52 would allow the Ombudsman to be known as
the Law Enforcement Ombudsman when performing functions in
relation to the Australian Federal Police.

Item 54 would give the Ombudsman the discretion
to decide not to investigate a complaint and transfer
responsibility for the investigation of the complaint to the AFP
Commissioner. The Ombudsman must provide the AFP Commissioner with
information as soon as is reasonably practicable and advise the
complainant that the complaint has been transferred to the AFP
Commissioner to be dealt with under the Act.

Item 55 would allow the Ombudsman to use
persons with police training to assist investigations of complaint
about AFP conduct or practices issues. The Ombudsman may use an AFP
appointee who is made available to him or her by the AFP
Commissioner or a State Police officer who has been made available
under arrangements made by the AFP Commissioner.

Item 56 would amend existing section 8A of the
Ombudsman Act, so that the Ombudsman can make an arrangement with
State Ombudsmen in relation to investigations of certain
action.

If the test shows alcohol is not present then the AFP appointee
may return to his or her duties. If the test shows alcohol to be
present or the AFP appointee refuses the screening test then a
written direction under section 40M to undergo a breath test may be
given.

The main criticism of this Bill has come from the Australian
Police Federation of Australia (AFPA). While generally supporting
the proposed changes, the Association told the recent Senate
inquiry that it does not believe that the Bill covers all the
required areas adequately and thus, should not be passed in its
current form.(11)

The AFPA submission argues that:

the recommendations of Justice Fisher have not been interpreted
in the light of the changes in the industrial environment since
2003

non-reviewable outcomes have a punitive action against the
employee

the AFP tribunal has been removed, but there is no clear
indication that AFP regulation 24 still applies to AFP employment
decisions (regulation 24 provides that a process for review of
employment decisions must exist at all times)

there are no reviewable actions in the new structure, as
envisaged by Justice Fisher

professional standards can be used as an umbrella to
incorporate employment related actions to usurp the application of
the Workplace Relations Act 1996, and

the new structure needs more refinement and specificity in its
powers and application to avoid the possibility of abuse and misuse
by those empowered within it.(12)

In response, the Senate Legal and Constitutional Legislation
Committee made the following recommendations in its 11 May 2006
report relating to this Bill on the basis of the analysis contained
in
Chapter Four:

Recommendation 12 The committee recommends that
the Law Enforcement (AFP Professional Standards and Related
Measures) Bill 2006 be amended to provide that a determination on
categories of conduct shall be made by the Commonwealth Ombudsman
and the Commissioner of the Australian Federal Police within three
months of the commencement of the Act.

Recommendation 13 The committee recommends that
the lower level disciplinary matters (categories 1 and 2) should be
subject to internal review while more serious matters (category 3)
should be the subject of external review for example, through the
Administrative Appeals Tribunal.

Recommendation 14 The committee also recommends
that the possible conflict of the Bill with the Workplace
Relations Act 1996 be resolved, before the Law Enforcement
(AFP Professional Standards and Related Measures) Bill 2006 is
enacted.

Recommendation 15 The committee recommends that
the Law Enforcement (AFP Professional Standards and Related
Measures) Bill 2006 clarify that the professional standards regime
applies to the Commissioner of the Australian Federal
Police.(13)

Sue Harris Rimmer
20 June 2006
Bills Digest Service
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